NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 8, 2013
Decided December 17, 2013
Before
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13‐2612
SHANE BRADLEY, Appeal from the United States
District Court for the Southern
Petitioner‐Appellant, District of Indiana, Terre Haute
Division.
v. No. 2:11‐cv‐00078‐WTL‐DKL
CHARLES LOCKETT, Warden, William T. Lawrence, Judge.
Respondent‐Appellee.
O R D E R
In March 2004, Mr. Bradley pleaded guilty to one count of heroin distribution in
the Western District of Wisconsin for which he was sentenced as a career offender.
Since that time, Mr. Bradley has attempted to challenge his career‐offender designation
through various means. Most recently, Mr. Bradley sought, and was denied, relief from
No. 13‐2612 Page 2
judgment under Federal Rule of Civil Procedure 60(b)(6). Because we conclude that
relief under Rule 60(b) is not available to Mr. Bradley, and that his request cannot be
recharacterized in any way that might gain him the relief he seeks, we affirm the district
court’s judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A.
Following Mr. Bradley’s plea of guilty to heroin distribution, the probation
department prepared a Presentence Report, which concluded that Mr. Bradley qualified
as a career offender under United States Sentencing Guidelines § 4B1.1. Specifically,
Mr. Bradley was at least eighteen years of age, his offense of conviction was a felony
controlled substance offense, and he had at least two prior felony convictions that were
a controlled substance crimes or a crimes of violence: a Wisconsin state felony
conviction for conspiracy to deliver marijuana; a Wisconsin state felony conviction for
intimidation of a victim; and a Wisconsin state felony conviction for possession of THC
with intent to deliver. At sentencing, Mr. Bradley did not object to these convictions,
the amount of drugs involved with respect to the count to which he pleaded, or his
designation as a career offender. The district court therefore sentenced Mr. Bradley
under the career offender guideline to 223 months’ imprisonment.
B.
In June 2005, Mr. Bradley filed his first motion under 28 U.S.C. § 2255 alleging
that his trial attorney was ineffective because he had induced Mr. Bradley to plead
guilty by misrepresenting the length of incarceration he faced if he proceeded to trial
and because he had failed to follow through on Mr. Bradley’s request to file an appeal.
Additionally, he alleged that counsel was ineffective for failing to object to his career
offender status because his THC conviction was for simple possession, not possession
with intent to deliver, and because his felony intimidation conviction was not a crime of
violence.
Addressing first the arguments related to Mr. Bradley’s career‐offender
designation, the district court determined that the record did not support Mr. Bradley’s
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claim that his THC conviction was for simple possession. Bradley v. United States, No.
3:03‐cr‐00171 (W.D. Wis.), R.75 at 4. The court also concluded that his felony
intimidation conviction “was a crime of violence and even were it not, petitioner would
have been classified as a career offender because of his two other felony controlled
substance offenses: delivery of marijuana/conspiracy to deliver marijuana and
possession of THC with intent to deliver.” Id. With respect to his guilty plea, the
district court held that Mr. Bradley’s argument was barred because he had not raised
the issue on appeal, nor had he shown cause and prejudice for failing to do so. Id. at 5.
The district court did not address Mr. Bradley’s argument that his counsel failed to file
an appeal as requested. The district court denied a subsequent motion to alter or
amend the judgment and also denied Mr. Bradley a Certificate of Appealability
(“COA”).
We granted the COA limited to two issues: “whether his counsel failed to file a
notice of appeal, and whether his counsel gave deficient advice inducing a guilty plea.”
Bradley v. United States, 219 F. App’x 587 (7th Cir. 2007). We concluded that Mr. Bradley
had made the necessary showing to obtain an evidentiary hearing on both issues and,
therefore, remanded the case to the district court to hold an evidentiary hearing.
Following an evidentiary hearing, the district court denied Mr. Bradley relief
under § 2255. Mr. Bradley moved to alter or amend the district court’s judgment; this
motion was denied as well. Mr. Bradley then filed an appeal, but we denied the request
for a COA.
C.
In August 2009, Mr. Bradley filed a motion under Federal Rule of Civil
Procedure 36 to correct two clerical mistakes in his PSR:
First, that he was convicted in the Circuit Court for Jefferson County,
Wisconsin of possession of THC with intent to deliver, whereas his actual
conviction was for possession of THC and drug paraphernalia. Second,
that he was convicted in the same court on another occasion of victim
intimidation with the threat of force or violence, in violation of Wis. Stat.
§ 940.45(3), whereas his actual conviction was for victim intimidation
accompanied by injury or damage to property of the victim, in violation of
Wis. Stat. § 940.45(2).
No. 13‐2612 Page 4
Bradley v. United States, No. 3:03‐cr‐171 (W.D. Wis.), R.133 at 1. The district court denied
the motion. The court noted that Mr. Bradley’s motion “appear[ed] to be the first step
in an effort to show that he was sentenced improperly as a career offender,” and that it
was “too late for him to rase such a claim.” Id. at 2. Nevertheless, “[f]or the sake of
completeness,” the court addressed the request to correct the PSR. Id. The court noted
that Mr. Bradley was complaining about his conviction for possession with intent to
deliver THC. It explained that,
If defendant’s copy of his judgment and conviction is correct … ,
defendant was convicted of possession only and not of possession with
intent to deliver. In that circumstance, the offense should not have been
included in the career offender calculation. If it were left out, however,
there remains a Jefferson County conviction for felony delivery of
marijuana and conspiracy to deliver marijuana, which defendant has not
mentioned, and a second Jefferson County conviction for felony
intimidation with threat of force and felony false imprisonment. Nothing
in the papers defendant has submitted shows that it would have been
improper to count the felony drug conviction as a prior felony controlled
substance offense. As to the conviction for felony intimidation, defendant
contends that he was actually convicted only of subsection (2) of Wis. Stat.
[§] 940.45, which covers intimidation with injury to property, but, again,
nothing in the papers he has submitted supports that contention. Even if
it did, defendant has not shown that the associated charge of felony false
imprisonment would not have qualified as a crime of violence.
In short, defendant has shown no reason to correct his presentence
report at this time.
Id. at 3. Mr. Bradley appealed, and we affirmed. In an order issued in March 2011, we
determined that the district court was correct not to consider this a second or
subsequent § 2255 motion and that it had not abused its discretion in denying the
motion.
D.
Mr. Bradley then filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2241. He argued that, after the Supreme Court’s decision in Johnson v. United States,
130 S. Ct. 1265 (2010), his conviction for victim intimidation no longer qualifies as a
No. 13‐2612 Page 5
predicate violent felony for the career offender enhancement because it did not
necessarily involve “violent force” as the Supreme Court had defined that term. Bradley
v. Lockett, 2:11‐cv‐78 (S.D. Ind.), R.1 at 3. Moreover, he continued, like the Court’s
decision in Begay v. United States, 553 U.S. 137 (2008), Johnson should be applied
retroactively. Mr. Bradley also explained that a motion under 28 U.S.C. § 2255 was
inadequate to test the legality of his detention because § 2255 only permitted a second
or successive petition based on a change in law if the change was “a new rule of
constitutional law, made retroactive by the Supreme Court.” Because Johnson involved
the interpretation of the career offender statute, as opposed to a rule of constitutional
law, he could not proceed under § 2255. Under such circumstances, he argued, our case
law allowed him to proceed with his habeas petition under § 2241. In re Davenport, 147
F.3d 605, 611 (7th Cir. 1998).
The district court denied this motion in March 2012. It held that “[c]ontrolling
and persuasive authority dictates that the savings clause embodied in § 2255(e) requires
a claim of actual innocence directed to the underlying conviction, not merely the
sentence.” Bradley v. Lockett, No. 2:11‐cv‐78 (S.D. Ind. Mar. 16, 2012). Because
Mr. “Bradley ha[d] not been convicted of a non‐existent offense, nor [wa]s he factually
innocent of the conviction for which he [was] serving a sentence,” he could not invoke
§ 2241 as a means for challenging his sentence. Id. Mr. Bradley again appealed.
On appeal, we noted that Mr. Bradley “correctly [had] argue[d] that under recent
precedent, ‘a sentencing error is cognizable on collateral review “where a change in the
law reduces the defendant’s statutory maximum sentence below the imposed
sentence.”’ Narvaez v. United States, 674 F.3d 621, 628‐30 (7th Cir. 2011).” Bradley v.
Lockett, No. 12‐2185, at 2 (7th Cir. July 16, 2012). The panel went on to conclude,
however, that Mr. Bradley’s “claim still fail[ed]” because his “statutory maximum
sentence of 30 years would remain unchanged regardless of the career offender
determination, and is well above the imposed sentence of 223 months.” Id. Mr. Bradley
moved for panel rehearing and rehearing en banc, but that motion was denied. He did
not file a petition for writ of certiorari.
E.
Mr. Bradley next attempted to test the legality of his sentence through a motion
for relief from judgment and a motion to recall the mandate; both were denied by the
district court. His latest effort is a second motion for relief from judgment under
Federal Rule of Civil Procedure 60(b). Before the district court, Mr. Bradley maintained
No. 13‐2612 Page 6
that the prior panel never reached the merits of his § 2241 motion and that he therefore
can employ Rule 60(b) as a means of “‘attack[ing] . . . [a] defect in the federal habeas
proceedings.’” Bradley v. Lockett, No. 2:11‐cv‐78 (S.D. Ind.), R.45 at 1 (quoting Gonzales v.
Crosby, 545 U.S. 524, 532 (2005)). The district court denied the petition on three grounds:
(1) The argument that it had erred in its analysis of his habeas claim was not within the
scope of Rule 60(b); (2) the motion was not filed within one year from the date the
judgment was entered on the clerk’s docket; and (3) an intervening change in law does
not constitute extraordinary circumstances required for relief under Rule 60(b)(6).
Mr. Bradley appealed.
II
DISCUSSION
On appeal, Mr. Bradley acknowledges that, because he already has argued to the
prior panel that Narvaez and other authorities require his resentencing, it may “appear
to the reader … that [he] is attempting to use this appeal of his 60(b) Motion as a
substitute for an appeal of the denial of his habeas corpus petition brought under 28
U.S.C. § 2241.” Bradley v. Lockett, No. 13‐2612 (7th Cir.), Pet’n’r’s Mem. 1. Nevertheless,
he argues that the Supreme Court’s holding in Gonzales v. Crosby, 545 U.S. 524 (2005),
allows him to pursue the present motion, which, he claims, is directed at a “‘defect in
the Federal habeas proceedings,’” and not the merits of his underlying claim for relief.
Id. at 14 (quoting Gonzales, 545 U.S. at 532).
A.
Before considering the application of Gonzales to the present case, it is necessary
first to understand the prior panel’s prior decision with respect to Mr. Bradley’s § 2241
motion. As noted previously, in his appeal from the denial of his § 2241 motion,
Mr. Bradley relied heavily on our decision in Narvaez, 674 F.3d 621. In Narvaez, we
acknowledged the general rule “that sentencing errors are generally not cognizable on
collateral review, especially when such errors can be raised on direct appeal.” 674 F.3d
at 627. The circumstances presented to us in that case, however, “present[ed] a special
and very narrow exception: A postconviction clarification in the law ha[d] rendered the
sentencing court’s decision unlawful.” Id. We explained:
This case … involves the classifying of an individual as belonging
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to a subgroup of defendants, repeated violent offenders, that traditionally
has been treated very differently from other offenders. To classify
Mr. Narvaez as belonging to this group and therefore to increase,
dramatically, the point of departure for his sentence is certainly as serious
as the most grievous misinformation that has been the basis for granting
habeas relief.
Id. at 629.
In considering Mr. Bradley’s appeal from his § 2241 motion, the previous panel
of this court acknowledged the possible application of Narvaez. Nevertheless, it
determined that the district court’s dismissal of Mr. Bradley’s petition should be
affirmed because, although Mr. Bradley had been sentenced as a career offender, his
sentence of 223 months’ imprisonment was below the statutory maximum of 360
months. On that ground, the prior panel of this court concluded that Mr. Bradley was
not entitled to relief. This conclusion, however, was in error. Narvaez makes clear that
whether a defendant’s sentence is below the statutory maximum “is not alone
determinative of whether a miscarriage of justice occurred,” id. at 629, and holds that
defendants who incorrectly have been sentenced as career offenders may challenge that
designation in a collateral attack, id. at 629–30. Brown v. Caraway, 719 F.3d 583, 587‐88
(7th Cir. 2013), confirms this holding.
The question, therefore, is whether Mr. Bradley, consistent with governing
habeas law, may seek redress of the panel’s error in ruling on his § 2241 motion. Our
analysis begins with the governing habeas statutes.
B.
Section 2244(a) of Title 28 provides:
No circuit or district judge shall be required to entertain an application for
a writ of habeas corpus to inquire into the detention of a person pursuant
to a judgment of a court of the United States if it appears that the legality
of such detention has been determined by a judge or court of the United
States on a prior application for a writ of habeas corpus, except as
provided in section 2255.
Here, Mr. Bradley has challenged previously both the legality of his detention in his
No. 13‐2612 Page 8
original § 2255 motion that raised ineffective assistance of counsel claims and also the
legality of his sentence in his § 2241 motion that raised the impropriety of using his
victim‐intimidation conviction as a predicate offense for application of the career
offender guideline. Thus, in order to pursue a second challenge to his detention or
sentence, he must satisfy the requirements for a second or successive petition under
§ 2255(h).1
Mr. Bradley, however, maintains that he is not pursuing a second challenge to his
sentence, but that he is seeking to correct a procedural error in the court’s application of
the habeas statutes. Consequently, under the authority of Gonzales, his claim may
proceed as long as he makes the necessary showing for relief under Rule 60. We do not
believe that Gonzales can be read in such a way as to allow Mr. Bradley to go forward
with his motion.
Gonzales concerned a state prisoner who had petitioned for and been denied
habeas relief on the ground that his petition was untimely. A subsequent Supreme
Court2 case revealed that the rule applied by the lower court in dismissing the petition
was erroneous. The prisoner therefore filed a motion for relief from judgment pursuant
to Rule 60(b). Before the Court was the question “whether, in a habeas case, such
motions are subject to the additional restrictions that apply to ‘second or successive’
habeas corpus petitions under the provisions of the Antiterrorism and Effective Death
Penalty Act of 1966 (AEDPA), codified at 28 U.S.C. § 2244(b).” Gonzales, 545 U.S. at 526.
The Court noted that
1
28 U.S.C. § 2255(h) provides:
(h) A second or successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals to contain–
(1) newly discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.
2
See Artuz v. Bennett, 531 U.S. 4 (2000).
No. 13‐2612 Page 9
AEDPA did not expressly circumscribe the operation of Rule 60(b)… . The
new habeas restrictions introduced by AEDPA are made indirectly
relevant, however, by the fact that Rule 60(b), like the rest of the Rules of
Civil Procedure, applies in habeas corpus proceedings under 28 U.S.C.
§ 2254 only “to the extent that [it is] not inconsistent with” applicable
federal statutory provisions and rules.
Id. at 529 (quoting 28 U.S.C. § 2254 Rule 11) (footnote omitted). The Court observed that
there were three requirements on second or successive habeas petitions:
First, any claim that has already been adjudicated in a previous petition
must be dismissed. § 2244(b)(1). Second, any claim that has not already
been adjudicated must be dismissed unless it relies on either a new and
retroactive rule of constitutional law or new facts showing a high
probability of actual innocence. § 2244(b)(2). Third, before the district
court may accept a successive petition for filing, the court of appeals must
determine that it presents a claim not previously raised that is sufficient to
meet § 2244(b)(2)’s new‐rule or actual‐innocence provisions.
Id. at 529‐30. The first step in the analysis in determining whether the movant’s Rule
60(b) motion fell within these prohibitions, therefore, was to determine the “claim”–“an
asserted federal basis for relief from a state court’s judgment of conviction”–being
presented. Id. at 531.
The Court then identified several kinds of “claims” that a petitioner might bring,
including a petition that “attacks the federal court’s previous resolution of a claim on the
merits, since alleging that the court erred in denying habeas relief on the merits is
effectively indistinguishable from alleging that the movant is, under the substantive
provisions of the statutes, entitled to habeas relief.” Id. at 532 (emphasis in original)
(footnote omitted). The Court explained that a decision “on the merits” is “a
determination that there exist or do not exist grounds entitling a petitioner to habeas
corpus relief … . When a movant asserts one of those grounds (or asserts a previous
ruling regarding one of those grounds was in error) he is making a habeas corpus
claim.” Id. at 532 n.4.
The Court distinguished such a scenario from one in which the movant “merely
asserts that a previous ruling which precluded a merits determination was in error–for
example, a denial for such reasons as failure to exhaust, procedural default, or
statute‐of‐limitations bar.” Id. “If,” the Court continued,
No. 13‐2612 Page 10
neither the motion itself nor the federal judgment from which it seeks
relief substantively addresses federal grounds for setting aside the
movant’s state conviction, allowing the motion to proceed as denominated
creates no inconsistency with the habeas statute or rules. Petitioner’s
motion in the present case, which alleges that the federal courts
misapplied the federal statute of limitations set out in § 2244(d), fits this
description.
Id. at 533.3
C.
In the case presently before us, Mr. Bradley analogizes this court’s misapplication
of Narvaez with respect to his § 2241 motion to the tolling error of the district court in
Gonzales. We do not believe this is an apt comparison. Narvaez concerns the availability
of substantive relief. In Narvaez, we carved out an exception to the general rule that
sentencing errors are not cognizable on habeas review for those who had been
designated as career offenders under the then‐mandatory Guidelines on the basis of
crimes that no longer qualified as violent felonies. In other words, we recognized a new
substantive right. Narvaez concerned whether relief was available to a category of
prisoners, not, as in Gonzales, when, where or by what means that relief could be had.
The prior panel’s error with respect to Mr. Bradley’s § 2241 appeal was its belief that
Mr. Bradley fell outside of this category because his sentence was under the maximum
authorized by statute. As a result of the prior panel’s conclusion, it did not have to
3
Nevertheless, the Court determined that the petitioner was not entitled to relief
under Rule 60(b) because he could not satisfy the requirements of that rule. Specifically,
a litigant seeking relief under Rule 60(b)(6) had to establish “‘extraordinary
circumstances’ justifying the reopening of the final judgment,” which, the Court noted
“rarely occur[red] in the habeas context.” Id. at 535. It explained:
Petitioner’s only ground for reopening the judgment denying his first
federal habeas petition is that our [later] decision … showed the error of
the District Court’s statute‐of‐limitations ruling. … It is hardly
extraordinary that subsequently, after petitioner’s case was no longer
pending, this Court arrived at a different interpretation.
Id. at 536.
No. 13‐2612 Page 11
reach the question whether Mr. Bradley’s victim‐intimidation conviction qualified as a
predicate violent felony for purposes of § 4B1.1. Nevertheless, its decision was a
substantive one: It upheld the legality of Mr. Bradley’s sentence.
In short, the prior panel’s decision with respect to Mr. Bradley’s § 2241 motion
was a “determination that there … do not exist grounds entitling [Mr. Bradley] to
habeas corpus relief.” Id. Therefore, Mr. Bradley’s present attempt to have us revisit
this ruling is a claim on the merits. See id. at 532 (“A motion can also be said to bring a
‘claim’ if it attacks the federal court’s previous resolution of a claim on the merits.”).
His current motion, therefore, styled as a motion for relief from judgment under Federal
Rule of Civil Procedure 60(b)(6), is a subsequent habeas application subject to the
strictures of 28 U.S.C. § 2255(h). See supra note 1. Mr. Bradley has not argued, and,
indeed, could not argue, that the motion presently before the court meets these
requirements. We therefore must affirm the denial of Mr. Bradley’s motion.